Roberts, R v

A person judicially found unfit to be tried cannot competently pursue an appeal in person or instruct new lawyers to do so. The statutory right of appeal must instead be considered by the person appointed to put the defence case, or by fresh counsel appointed in the interests of justice. The appointed representative must exercise independent professional judgment and is not bound by the unfit person’s purported instructions.

Evidence of reprehensible conduct may be admissible at a hearing under section 4A where it is relevant to the acts alleged. The inherent limits on an unfit accused’s ability to advance an explanation do not, without more, make that evidence inadmissible.

The applicant had been found unfit to be tried at Worcester Crown Court under section 4 of the Criminal Procedure (Insanity) Act 1964. A jury subsequently found under section 4A that he had done the acts alleged in two offences of meeting a child following sexual grooming. He received a hospital order and a Sexual Harm Prevention Order.

After the Single Judge refused several late applications, the applicant purported to renew his application to the Full Court. Counsel was appointed to put his case because of the procedural difficulty created by his prior finding of unfitness. The only ground pursued concerned the admission, as bad-character evidence, of evidence relating to a withdrawn count. The court also addressed the proper procedure for appeals by persons found unfit to be tried.

1. The renewed application was refused. None of the applicant’s grounds disclosed an arguable basis for appeal. The Recorder had been entitled to find him unfit on the unchallenged psychiatric evidence.

2. The evidence concerning the withdrawn count was in principle admissible as reprehensible conduct. Creed [2011] EWCA Crim 144 confirmed that the bad-character provisions of the Criminal Justice Act 2003 may apply at a section 4A hearing. The photographs and pseudo-photograph were unquestionably in the applicant’s possession. The evidence provided relevant context, and counsel could draw attention to the withdrawal of the count and the possibility of misunderstanding.

3. An accused’s limited ability to give a rational account is generally inherent in section 4A proceedings. It did not itself require exclusion of otherwise relevant evidence. There was no arguable basis for alleging that trial counsel had acted incompetently by agreeing that the evidence should remain before the jury.

4. Where an accused has been found unfit under section 4 and the jury has found that he did the act or omission, he lacks the mental competence to bring an appeal in person or to instruct fresh representatives. The right to appeal under section 15 of the Criminal Appeal Act 1968 is preserved through the person appointed to put the defence case. That person must independently consider whether arguable grounds exist and is not bound by the accused’s purported instructions.

5. The Criminal Appeal Office should first ascertain whether the appointed representative identified arguable grounds. The papers should then go to the Single Judge, who may direct fresh counsel to be appointed under section 31B if the interests of justice so require. A claim that capacity has returned requires appropriate fresh evidence, ordinarily psychiatric evidence.

6. Privilege attaches to confidential communications between the unfit accused and appointed defence counsel. Any decision whether to waive privilege rests with the appointed representative or fresh counsel acting in the accused’s best interests. The legal-aid order made for the present hearing was revoked and replaced by an order for the representative’s costs to be paid from central funds.

• Court of Appeal (Criminal Division): The Single Judge refused the applicant’s initial applications. The Full Court refused his renewed application and gave procedural guidance concerning appeals following findings under sections 4 and 4A of the Criminal Procedure (Insanity) Act 1964.
• Crown Court at Worcester: On 15 February 2016 the Recorder found the applicant unfit to be tried. On 18 February 2016 a jury found that he had done the acts charged under section 4A. A hospital order was later imposed.